Cheung Lai Lor v. Cheng To and Another

HCMP000849/1980

IN THE HIGH COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

ACTION NO. 849 OF 1980

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Coram: Penlington, J.

Date of Judgment: 11th April, 1981.

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JUDGMENT

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1. This is an action under the Partition Ordinance in respect of a flat situated at Johnson Road, Hong Kong, which was registered in the joint names of the Plaintiff and Defendant who were then married, as Joint Tenants. The flat was purchased in 1971 for $43,650 and is no doubt now worth considerably more.

2. The parties were divorced in 1978 and custody of the two children of the marriage a boy and a girl, was granted to the husband. He has at times let the flat since the divorce but now says he lives in it with his son. His daughter lives mainly with her grandparents in Wah Fu Estate but comes home occasionally to the Defendant.

3. The Plaintiff says that she is registered as a joint tenant and legally is entitled to a half share of the flat. She seeks an order that it be sold and the proceeds divided equally between the parties. The Defendant says in his affidavits that the Plaintiff did not contribute any part of the purchase price and the flat was put in their joint names purely to save possible death duty at some future time.

4. There was a previous action about this same matter brought by the Plaintiff under the Married Womans Status Ordinance in which Li J., on the Plaintiff's application dismissed the summons on the ground that when it was issued the parties were no longer married and the Court had no jurisdiction.

5. I have had considerable difficulty with this matter and can find very little relevant authority. The Defendant was not legally represented which certainly did not make the matter easier.

6. Section 2 of the Partition Ordinance provides that the Court may partition the property (which is not asked for), sell the property or refuse to make an order. Clearly there is therefore a discretion which however as Mr. Clough says, and I am most grateful to him for his assistance, must be exercised judicially.

7. Here the Defendant who has custody of two young children says that the Plaintiff holds her share of the property in trust for him and she never has had any beneficial interest in it. The Plaintiff has not said she did contribute but relies on her legal position as being registered on the title.

8. I have given this matter a great deal of thought and I have decided that, as the Defendant claims that the Plaintiff is a trustee and is not beneficially interested in the property and it is his home and that of at least one of his children, I should refuse to make an order and accordingly do so.

9. I was most anxious that this matter be finalised and realise that my refusal leaves an unsatisfactory position and further proceedings will have to follow if the parties cannot agree.

10. In the previous application the Plaintiff said that she did contribute some $10,000 towards the Defendant's business, the profits from which went into the flat. There seemed some corroboration of that and it was not denied by the Defendant. If I was able to I would make an order declaring that the Plaintiff was a trustee for the Defendant as to her share of the property and should assign such share to him subject to payment by him of the sum of $10,000, plus interest from the 2nd of July 1971. I do not however see how I can do so on the present application.

11. There will be no order as to costs.

Representation:

Mr. Clough instructed by D.L.A. for plaintiff.

1st Defendant in Person.